WHAT ARE THE CHALLENGES, OPPORTUNITIES AND TOOLS AVAILABLE TO NEGOTIATE BUSINESS AGREEMENTS IN BC?

Has Your First Nations been faced with the following kind of questions?:

“Our First Nation territory is being inundated by junior mining exploration companies who want to develop in our territories. They want to get the license and then sell to the highest bidder. They have no interest in a long term relationship or in providing our First Nations with lasting benefits, what can we do to protect ourselves?”…

“the procurement policy the company has is not advantageous enough for our community to accept. We were able to leverage our political strength to change the policy, in negotiations, is this always possible?”...

“How do we ensure that our community members understand fully-have the free and informed consent needed to allow a development project to go ahead on our land on terms that protect our rights and way of life while providing benefits….”

These questions were asked and explored last week at the First Nations Alliance for Land Management Forum held in Sto:lo Territory that explored the best practices in negotiating agreements for partnership, business, benefits and revenue sharing. I had the privilege of chairing the sessions and was again impressed with the quality of agreements that First Nations have negotiated for their communities. I was also impressed with the willingness of the presenters to share lessons learned with other First Nations.

“First Nations Alliance 4 Land Management (FNA4LM) is an organization that provides professional development services through training workshops and by offering collective skills, knowledge and experience through various networking channels. FNA4LM is committed to developing and maintaining on-going communications between First Nations Lands Managers in BC.” (FNA4LM webpage http://www.fna4lm.ca/) The FNA4LM received funds from the New Relationship Trust to study key negotiation practices involving major projects and to share those practices in a conference setting.

The paper itself will be posted on this website at the end of the month and explores case studies of the Squila First Nation(SFN) developing the Eagle Landing Shopping Centres on the community’s reserve lands near Chilliwack, BC; Sexqueltkemc of the Secwepemc Nation limited partnership agreement to secure a bid to secure the catering and camp services contract for BC Hydro’s Mica Dam Expansion project; and the Tahltah Central Council’s agreement with Alta Gas Ltd. on two hydroelectric projects. Those nations presented at the forum along with Chief Shane Gottfriedson from the Tk’emlups Indian Band and their agreement with the New Afton Mine and revenue sharing agreement with the province of BC. Also, the Kanaka Bar Indian Band presented on their Kwoiek Creek Electric project.

Generally, all presenters discussed some of the challenges with negotiating agreements whether it was with a corporation or the government, and how to involve the community.

Many presenters talked of the challenges of unresolved overlaps or shared territories and what a challenge it is for First Nations and industry to try and work with First Nations that would not work together. The need for First Nations to resolve their overlaps/shared territories was key to successful agreements like the Tk’emlups and Skeetchestn as well as the Adams Lake, Splatsin and Neskonlith in their joint venture with Horizon North.

Challenges that were raised around having business experience included the ability to assess business opportunities thoroughly and accurately with proper expertise and know when there was a good deal on the table. This also involved knowing the value of your reserve lands, the value of branding, certainty and relationships. Also, preparing your team for negotiation so they can cover all the necessary elements in an agreement including finances, protection of rights, environmental, social, etc. Making agreement implementation practical was also a piece of key advice offered as well as setting timelines and milestones to get projects up and running.

The “tools” or “mechanisms” that First Nations are using to conduct business on and off reserve vary.

For First Nations doing business on reserve, 20 First Nations in BC have adopted Land Codes under the First Nations Land Management Act (FNLMA). 12 more are in the process of getting Land Codes Approved. Under the FNLMA First Nations can control their lands without going through Aboriginal and North Development Canada (AANDC). The Minister no longer has to negotiate leases and approve by-laws and have the Department of Justice approve them. This was a huge bureaucratic process for those First Nations who do a lot of leasing of lands for industrial and commercial process. Under the FNLMA First Nations can pass laws on giving interests in their lands, land use, resource use and management, environmental laws and zoning.

The Squiala First Nation have effectively used their Land Code to help establish and develop the Eagle Landing Shopping Centre and have shifted business from downtown to their Centre. First Nations doing development on reserve talked about how much more discretion they have on reserve than off and used this to their advantage in development and in attracting businesses and partners. Squila has Wal-Mart and Home Depot and other businesses as an illustration of this.

Other first Nations are using Financial Administration Laws, have established mechanisms for dealing with cultural, environmental, financial, legal and community outreach issues. To guide the First Nation and their development projects, communities have approved guiding policies/declarations on Resource development, Mining and consultation and accommodation. The Tahltan is one of those First Nations who have done so. Environmental Assessment laws have also been effective for on reserve developments as it can streamline the process and focus on what is important to the community. It also provides the community with the opportunity to use Traditional ecological knowledge.

Other tools First Nations use to guide business are effective agreements that cover things like communications, environmental processes, and exploration.

Having a range of options to use in business agreements such as buy-in options, revenue sharing and profit sharing as means of financial participation in projects. Successful First Nations have often visited other First Nations with similar developments, or had agreements that they wanted to learn about and were provided with good information which help craft the agreements they negotiated. Ownership is important and for some 100% ownership was needed, other wanted a majority ownership of at least 51%, for others, acquiring a greater share as time went on was the only way they could acquire greater ownership due to financial constraints. The Kanaka Bar Indian Band relayed that in 40 years, they will be 100% owners.

Members have asked for shares in the profits of companies and several communities have developed the kinds of benefits that members can benefit from like elder support, hardship grants, youth support, community facilities, small distributions at Christmas, etc. Other First Nations have formed a financial committee to make recommendations to chief and Council on how to use the profits for the use of the community.

Educating community members on the projects has been done in many ways. First Nations shared that they make use of all forms of communication-public meetings, presentations, social media, 1–on-1 meetings, fact sheets with questions and answers, radio and print media, websites. Having an effective engagement process with company and members was also important. Using physical models, computer generated models, site visits – to help members understand project. Including members who live away from home in the planning processes, consents to project and establish principles to guide development was also key to the success of the community. Establishing a clear vision from the members was also cited as an important tool in advancing economic development.

The training of staff, management, Chief and Council and members were all considerations that First Nations have been working on. Making training available at all levels of business was critical. Making sure the First Nation members took part in all aspects of employment to the greatest extent possible was a goal of all the First Nations. Tahltan have developed a corporation that hires and trains as many members as possible and make them available to companies that are doing development projects in their territories. Finding education/training methods that work was also a concern. Boot camps is one tool that was utilized so members could attend and get all the certificates they need. Some First Nations put a Human Resource strategy in place to maximize training and employment.

In working on establishing the development, First Nations made effective use of elders and members knowledge to review projects and incorporate Traditional Use Knowledge to review and manage. First Nations also developed teams of experts for all facets of development that include elders and members where feasible. Providing continuous learning throughout the project was also a desirable objective. Having the business partner you are working with put money up front so the First Nation can do their preparation, contract with expert advisers and do community consultations was a common practice of doing business with a First Nation. In choosing board members for corporations and trusts, several First Nations said they do not allow elected leaders to be on these boards.

Choosing business partners was also an important consideration. Making sure you had a partner that was going to be around for the long term was seen as desirable. A company that would respect and recognize aboriginal rights and title was essential. Doing due diligence to research potential partners and find personal references was also cited as essential. Having a process on how you did your due diligence was a potential tool. Knowing you could share sensitive knowledge with each other while respecting confidentiality with understanding was also an important element to finding a partner. Finding a partner that was willing to be educated on the consent needed from First nations members, on the project.

Using the leverage you have, also plays a part in finding a partner. The Kanaka Bar Indian Band had the water license on the Kwoiek Creek which put them in the position to chose the partner they wanted, and placing the powerhouse on the reserve also gave them a great advantage to bring to the partnership they formed with Innergex.

Learning the business and using the knowledge of one business to do other businesses was reiterated by many the presenters. Keep building capacity and ensuring that the capacity was not in one person, but rather within the government itself was key to continuing to do business successfully and sustainably. This forum was well worth attending and hopefully in the future more gatherings focusing on the “how to’s” will be offered to First Nations involved in negotiating agreements of all kinds. Clearly, First Nations are using tools that are available and creating their own tools.   Other tools could still be created to ensure First Nations are fully participating in economic development in their territories, investing in businesses with other First Nations outside their territory, in ways that are in keeping with their values and vision.

 

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